Quickly

The University of New Mexico’s decision on Thursday to suspend head football coach Bob Davie for 30 days over allegations that he physically assaulted players, obstructed a rape investigation and frequently engaged in racist comments is poised to spark yet another college football scandal that intersects with the law.

In a statement released on Thursday, UNM interim president Chaouki Abdallah revealed that the school’s concerns about Davie trace back to spring 2017. As seniors finished up their coursework, UNM’s Office of Equal Opportunity (OEO) heard accounts shared by graduating football players that depicted abusive practices in the football program. The OEO then launched an investigation. These concerns were amplified last August when a former football player wrote a disturbing letter to Abdallah and then-acting athletic director Janice Ruggiero. The former player presented himself as a whistleblower. In the letter, he detailed violent altercations between players and UNM coaches.

Understandably troubled by the claims (and likely mindful that university investigations can take many months to complete), Abdallah retained a retired federal judge to immediately launch a separate investigation. The judge proceeded to meet with witnesses, including Davie. The judge later recommended to Abdallah that the school formally investigate whether football players had been physically abused and whether UNM coaches had obstructed law enforcement and university investigations into allegations that football players had sexually assaulted female classmates. Abdallah then retained the law firm Hogan Marren Babbo & Rose to launch an investigation that would be concurrent to the OEO’s investigation.

Both investigations reached the same basic conclusion: A number of witnesses portray Davie as bigoted, obstructionist and reckless with player health, but some of those allegations either lacked corroborating evidence or were contradicted by other accounts. Armed with these conclusions, Abdallah has not only suspended Davie, but also demanded that the 63-year-old coach undergo in-person training and that he acknowledge his obligation to comply with UNM policies. UNM will also require mandatory in-person Title IX training and cultural sensitivity training for employees in the athletics department.

The Hogan Marren report methodically summarizes each allegation and the results of a corresponding inquiry. For instance, one allegation asserted that football coaches dangerously “overruled the judgment of the team’s medical staff” in pressuring injured players to suit up and play. Attorneys from the law firm then met with players, coaches and other witnesses. They found evidence that players recovering from injuries had, in fact, “felt pressured by the coaching staff to play.” However, the attorneys did not find evidence that any player was forced to play before the medical staff had cleared him.

The attorneys also probed allegations that Davie attempted to sidetrack a claim by a UNM student that a football player had raped her. To that end, some of the witnesses portray Davie as directing a campaign to discredit the accuser.

Davie—allegedly—informed his players that one of their teammates was accused of rape and he encouraged them to share any pertinent information. The players, according to the report, are described as spreading word that a teammate had been falsely accused of rape and that Davie “was going to take care of it.” One witness had previously told the retired judge that Davie held a team meeting in which he demanded that players “get some dirt on this whore”—an alleged directive that prompted players to canvass the accuser’s social media pages for any information that could reflect poorly on her.

Players then found, and relayed to Davie, information suggesting the accuser posted a video after the alleged rape. In the video, the accuser is described as making comments about a guy with whom she had just broken up. Although the identity of the ex-boyfriend is not mentioned in the video, Davie allegedly directed school investigators to focus on the video on grounds that it showed the accuser was seeking revenge over a breakup and thus had a reason to make a false accusation. The report also depicts Davie as responding to a search warrant for the accused player’s DNA by saying that he dropped the player off at an attorney’s office.

Although this particular account suggests that Davie acted as something of a minister of misinformation on behalf of an accused player, attorneys for Hogan Marren could not sufficiently corroborate that Davie had acted in such a way.

For instance, when former players and coaches were asked about the team meeting in which Davie allegedly demanded that players “get some dirt” on the accuser, they “claimed not to have been present at the meeting, had no recollection of Coach Davie using the words reported to the judge or only remembered that the players were simply told they needed to protect their teammate and to provide information about the incident to Coach Davie.” Given the uncertain set of evidence, attorneys for Hogan Marren declined to conclude that Davie had unlawfully obstructed any law enforcement or university investigation.

The OEO report likewise describes serious allegations against Davie that also, at times, proved difficult to verify. The OEO interviewed current and former players, current and former coaches, football staffers, faculty members, a parent of one player and others.

One former player, for instance, relayed that Davie created a hostile environment by routinely making racist comments about African-American players. To illustrate, the former player recalled one incident where Davie took notice of four African-American players riding a golf cart. Davie then walked up to them and allegedly asked, “What you doing on the golf cart? That’s a white man’s sport.” This former player also accuses Davie of repeatedly using the n-word, mentioning the phrase “blood diamond” in the context of African-American players and employing similarly racist phraseology in a variety of contexts. Other witnesses likewise recall Davie using racist terms and also frequently drawing attention to African-American players’ race.

Several former and current players also depict Davie as physically abusive. One witness says Davie grabbed a player by the neck during halftime in a game in which the Lobos were losing. In addition, a former player told investigators that Davie ridiculed and physically accosted players—“especially players of color.” This witness says players, in recognition of an abusive environment linked to race, would sometimes refer to Davie to as “Massa Davie” as a “slave name for a master.” In a similar vein, a mother of a former player told investigators that Davie called her son the n-word and terrorized him to the point where he left the program altogether.

Not all witnesses recalled Davie as acting in racist or abusive ways. Perhaps not surprisingly, several members of Davie’s coaching staff and the UNM athletic department defended Davie. To that end, they did not remember incidents of Davie engaging in wrongful conduct (though several of them conceded that they had heard about these allegations second-hand). That said, one former coach, who is African-American, said he was unwilling to share what he knew “because he is afraid of retaliation.”

Important limitations in the two investigations

Both sets of investigators were limited by the fact that they are not law enforcement. The OEO’s report carefully acknowledged this dynamic: “The OEO does not have subpoena authority or other authority to compel document production or witness production.” This means that those who agreed to participate in the investigation did so only on a voluntary basis. A law enforcement investigation would be very different: Witnesses could be compelled by court order to turn over emails, texts and other records that they’d rather not share.

In addition, witnesses who agreed to participate were not interviewed while under oath. This means, at least in theory, that they could have intentionally lied or obfuscated without fear of perjury charges. In other words, if witnesses sought to protect someone, they could have done so. Likewise, if they felt worried about retaliation—as one former coach did—they may simply decline to share information without any risk of being charged with obstructing justice. Of course, witnesses with current affiliations to the university may have felt other pressures to be truthful, including school honor code expectations and university employee policies. Nonetheless, the fear of being charged with a crime if one knowingly lies is often more likely to animate truthful responses than are other potential repercussions.

As with any private investigation, the persons selected—and not selected—for interview requests can impact the kind of information that is gathered. While it seems that both Hogan Marren and OEO reached out to an extensive list of persons who may have possessed relevant knowledge, it’s possible that other important witnesses were not questioned.

As an additional limitation, private investigations, whether conducted by attorneys hired by a school or directly by school officials, are not “independent.” Attorneys are unlikely to produce a publicly viewable document that depicts a school or its current employees as breaking the law. Attorneys are advocates for their clients and would risk betraying that relationship by publicly accusing their clients of committing unlawful acts. Likewise, school officials are sensitive to their employment at the school. School officials accusing their employer of liability would likely do so with some fear; for some officials, fear of losing a job may prove very deterring.

Lastly, Davie’s minimal involvement in both investigations is a meaningful limitation—albeit it is a dynamic that Davie may have sought. It does not appear that attorneys from Hogan Marren interviewed Davie. The report indicates that the attorneys felt it wasn’t necessary to interview Davie given the “lack of specific evidence” connecting him to the alleged offenses. The report also notes that Davie had already spoken with the retired judge.

As to Davie’s involvement in the OEO investigation, Davie and his attorney exchanged email and phone correspondences with OEO investigators last year, and they met in person with a university compliance manager in early January. Minimal information about that meeting is revealed in the OEO report. According to the report, Davie requested during the January meeting that no more witnesses be interviewed if the only reason for the interview request was because Davie had previously requested they be interviewed.

Potential future repercussions

As of Friday morning, neither Davie nor anyone on his behalf has issued a statement in response to the suspension. If the suspension is carried out, Davie will reportedly lose about $70,000 of an annual salary that exceeds $800,000.

Davie could elect to challenge the suspension. To that end, he may want to consider a breach of contract lawsuit against UNM.

There would be several hurdles with a breach of contract lawsuit. For one, Davie’s contract—which runs through 2021—likely contains a mandatory arbitration clause. Davie’s previous contract with UNM contained such a clause, which required that “any dispute or controversy arising of or relating to this Agreement or the breach thereof, including the rights, duties, obligations and liabilities of the parties hereunder, shall be determined by binding arbitration.” In layman’s terms, this clause contractually obligated Davie and UNM to resolve a contractual dispute through arbitration. Although arbitration awards can be challenged in federal court, they are normally upheld.

Arbitration wouldn’t necessarily advantage or disadvantage either Davie or UNM, but if Davie hoped for a sympathetic jury in a trial, that wouldn’t be in the cards: Arbitration hearings are before arbitrators, not jurors.

Davie could also explore bringing a defamation lawsuit against UNM and the drafters of the two reports. He could argue the allegations contained in the reports are untrue and have damaged his reputation.

Several hurdles, however, would make such a lawsuit difficult. For one, Davie would need to convince a court that a defamation claim fell outside the scope of any mandatory arbitration clause. Second, the two reports do not invent or authenticate any allegations—they only relay them (and at times cast uncertainty on them). Third, statements made in legal proceedings are normally exempt from defamation claims. That is a relevant point since the two reports were borne from university investigations into potential unlawful acts. Fourth, Davie is a public figure and would thus need to prove “actual malice”—meaning statements made were not only untrue but they were knowingly untrue. Fifth, if Davie sues, he would be vulnerable to pretrial discovery and having to share evidence and testimony. If Davie has information related to the claims that he’d like to keep quiet, he ought to think twice about suing.

Any attempt by Davie to challenge the suspension could also risk angering Abdallah, who made clear in his statement that he expects Davie to take full responsibility. Davie’s previous contract with UNM contained provisions that require him to “act with honesty and sportsmanship at all times in promoting the honor, dignity, fair play and high standards associated with competitive sports . . . refrain from unethical conduct . . . be responsible for maintaining complete knowledge of and full compliance with the policies, rule sand regulations of the University.” This language is boilerplate and is likely contained in Davie’s current contract with UNM.

Abdallah could thus likely argue he has sufficient grounds to fire Davie and Abdallah could attempt to do so “for cause”—meaning Davie violated a term of the contract due to unethical or insubordinate conduct. If fired for cause, Davie would not be paid the remainder of his deal. Any firing for cause would almost certainly lead to a legal challenge by Davie.

As a separate matter, it’s possible that Davie himself could be sued. As recently analyzed on SI, former TCU wide receiver Kolby Listenbee has sued head football coach Gary Patterson, TCU and the Big 12 Conference for allegedly forcing Listenbee to play hurt. One line of allegation against Davie and his coaching staff discussed in the Hogan Marren report is that they directed players to play before they were medically cleared. This type of allegation could lead to legal claims against Davie that are similar to those raised against Patterson.

Lastly, there is the prospect of an NCAA investigation into UNM athletics and into Davie in particular. The two reports suggest that Davie often acted without fear of repercussion, the athletic department failed at times to display adequate institutional control and student-athletes’ health and safety may have been compromised by coaches. These are all grounds for NCAA investigation and potential sanction. However, UNM’s transparency in regards to the two reports and Abdallah’s comprehensive approach to investigating claims and then taking corrective action could mitigate any potential sanction issued by the NCAA.